The Myth of the 'Common Law Marriage'
The Myth Of The Common Law Marriage
In recent weeks we have received several enquiries from people who live with their partner but are not married to them regarding their legal rights following separation. There is an ongoing misconception that there is such a concept as a ‘common law’ marriage, and, unfortunately, this misunderstanding can have grave consequences when it comes to children, property, and finances if a relationship breaks down. Here we will explain the legal rights of unmarried couples and why entering into a Cohabitation Agreement is so important.
The widespread misconception of common law marriage
According to research by NatCen and the University of Exeter published in 2019, 46% of the population in England and Wales believe that unmarried couples living together are classed as being in a ‘common law marriage’, and hence they enjoy the same legal rights as a married couple. NatCen say that the number of people who believe in the existence of common law marriage has remained consistent since 2005, suggesting that the message is not getting through that this is not the case. Interestingly, their research shows that where children are involved, the more likely people are to believe in common law marriage.
The impact of such misconceptions can be devastating for the more financially vulnerable party who often suffer severe hardship and may lose the right to reside in their home. For this reason, it is extremely important to understand these implications and put in place the necessary arrangements in the form of a Cohabitation Agreement so you are protected in the event of separation or the death of your partner.
What are the rights of unmarried couples?
According to the latest census figures, the total number of cohabiting couples has increased from around 1.5 million in 1996 to around 3.6 million in 2021, an increase of 144%. If you are cohabitating your rights (or lack of them) will typically be as follows:
Banking Where funds are held in separate accounts, and one party dies, it can be difficult for the other party to gain access to the account of the other party in the event of their death.
Property Renting – you may be required to leave your home if the other party is the sole legal tenant and asks you to leave. If it is a joint tenancy, you both have equal rights to stay in the property. Where necessary, it may be possible to transfer the tenancy to the other party.
Ownership – the person/s named on the deeds have legal ownership of the property. If you are not named on the deeds, you will have little in the way of rights. It may be possible to secure an Occupation Order to allow a temporary stay in the property. If you own a property jointly with your partner, it will be possible to claim the share you own.
Where there is a dispute relating to land or property between an unmarried couple, it may be possible to resolve the matter through the Court under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA). Under TOLATA, one party can ask the Court to make decisions on who owns the property, how property should be shared, whether the property or land should be sold, and who should remain in the property.
Pension There is no automatic right to benefit from the pension of the other party. The exception being if you are named on the pension documents as a nominated beneficiary.
Maintenance Unmarried couples do not have the automatic right to claim maintenance from the other party.
When it comes to maintenance for children, it is possible to request a Schedule 1 order under Schedule 1 of the Children Act 1989. Applications are typically dealt with by the government’s Child Maintenance Service (CMS), but if the in case of high-net-worth couples, it may be necessary for the Court to make an order for a larger amount if the amount of child maintenance exceeds the amount that CMS is able to order.
Inheritance If you are unmarried, you will not automatically inherit from your partner unless they have specifically listed you as a beneficiary in your Will.
In addition, if you do inherit from your unmarried partner, you will not benefit from Inheritance Tax exemption.
When it comes to your children, you will need to come to an agreement with your partner regarding arrangements regarding where they will live, access, and finances, in the event of separation. This is the case whether you are married or in a civil partnership or not. Those with parental responsibility are legally responsible for making decisions on how the child will be raised, and both parents have financial responsibility.
Final words
As we have outlined in this article, there are considerable financial and legal implications for unmarried couples in the event of separation or death. For this reason, we highly recommend that all unmarried couples enter into a Cohabitation Agreement as early as possible to ensure their rights are protected. A well-drafted Cohabitation Agreement will ensure that you and your partner have decided such matters as how the bills, costs, and mortgages will be shared, who owns property and assets, what will happen in the event of a separation to property and assets, who is responsible for debts, and who will receive life insurances and pensions.
If you have any questions regarding this article, please call us on 0300 3732424.
